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Published by: Deep Choudhary on May 01, 2012
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Intellectual Property Rights


Rapid technological change and global integration require active exploration of emerging intellectual property issues, to offer creative and adequate responses to challenges facing the intellectual property system.

The overall objective is to promote the continued viability, increased efficiency and broader coverage of the intellectual property system, through exploration of all the challenges that the emergence of new uses and new users of intellectual property rights- such as holders of traditional knowledge- pose to the international community.

Traditional knowledge is not limited to any specific field of technology or the arts. The entire field of human endeavor is open to inquiry by traditional methods and the full breadth of human expression is available for its transmission. Traditional knowledge systems in the field of medicine and healing, biodiversity conservation, the environment and food and agriculture are well known. Other key components of traditional knowledge are the music, dance, and “artisanat” (i.e. designs, textiles, plastic arts, crafts, etc.) of a people.

When a traditional singer performs a song, the cadence, melody, and form all follow rules, which have been maintained for generations. Thus, a song‟s performance entertains and educates the current audience, but also unites the current population with the past. Understanding the interplay between practical knowledge, social history, art, and spiritual beliefs provides a valuable foundation for developing an understanding for the people which hold this knopwledge.

“Traditional” , therefore, does not necessarily mean that the
knowledge is ancient. “Traditional” knowledge is being created everyday, it is evolving as a response of individuals and communities to the challenges posed by their social environment.
The protection of traditional knowledge is important for communities in all the countries, particularly perhaps in developing and least developing countries.


traditional knowledge plays an important role in the economic and social organization of those countries. 6 . On another level.the convention on biological diversity (CBD) and the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). developing and least developed countries are engaged in implementing two international agreements.that may affect the manner in which knowledge associated with use of genetic resources (whether “traditional” or not) is protected and disseminated. and placing value on such knowledge is a viable means of promoting a sense of national cohesion and identity.On one level.

reluctance of the younger generation to learn the old ways. Another difficulty faced by TK holder is the lack of respect and appreciation for such knowledge. Death of TK holder result in the demise of entire tradition and knowledge system. . Absence of willing heirs to TK has resulted in precarious situation.PROBLEMS CONFRONTING HOLDERS OF TRADITIONAL KNOWLEDGE Holders of TK are faced with various difficulties . 7 . .through diffusion many traditional practices are lost Thus a primary need is to document and preserve the TK.rejection of tradition by young and encroachment of modern lifestyles results in decline of TK.

human intellect and hence IP. 8 .Intellectual property The agreement on TRIPS( trade related aspects of intellectual property rights) is the first successful attempt to consolidate and unify international norms for the effective protection of intellectual property. The objects of IP are the creations of the human mind. Industrial property forms part of intellectual property.

novels. etc.Types of Intellectual property • Copyright copyright relates to artistic creations. such as poems. 9 . cinematographic works. In most European languages other than English .copyright is called “authors right”. etc. • Industrial property IP is misunderstood sometimes as relating to movable or immovable property used for industrial [production such as factories. music. equipments. paintings.

commercial names and designations. • Industrial design are aesthetic creations determining appearance of industrial products. service marks. 10 . geographical indications and the protection against unfair competition.• IP includes inventions and industrial designs. • Inventions are solutions of technical problems. • In addition IP includes trademarks.

• Inventions inventions are new solutions to technical problems. 11 . If a person makes what he believes is an invention.to give him a document in which it is stated what the invention is and that he is the owner of the patent. • Patents inventions are protected by patents. the right to prevent third parties from using the process that includes the invention. In the case of process patents. ask the government by filing an application with the patent office. he works for an entity. selling or importing products which were made by the process that includes the invention. and to prevent third parties from using. offering for sale. Invention means an idea of an inventor which permits in practice the solution to specific problem in the field of technology. Every country gives legal protection to inventions.

it must be reproducible by industrial means. The design must appeal to the sense or sight. in particular in regard of any cost. Industrial designs are usually protected against unauthorized copying or imitation. examination or publication. Moreover. Members of the said agreement are also obliged to ensure that requirement for securing protection of textile designs. pattern or color of the article.• Industrial designs an industrial design is the ornamental or aesthetic aspect of a useful article. Such particular aspect may depend on the shape. 12 .3 of the TRIPS agreement. this is the essential purpose of the design. do not unreasonably impair the opportunity to seek and obtain such protection. and is why the design is called “ industrial”. Under article 26. the duration of protection available shall amount to at least 10 years.

one must. If it is called a patent. always specify that it is a patent for industrial design. 13 .• The document which certifies the protection may be called a registration certificate or a patent. in order to distinguish it from the patents for invention.

utility models. industrial designs.• A contracting party is free to implement its obligations under the treaty through a special law on layout-designs ( a solution which is more and more frequent).design is a prerequisite to protection. 14 . or its law on copyright. • Contracting parties are free to provide that registration of a layout. unfair competition or any other law or a combination of any of those laws. patents.

shall be eligible for registration as trademarks ( TRIPS article 15. capable of distinguishing the goods or services of one undertaking from those of other undertakings. or any combination of signs. figurative elements and combination of colors as well as any combination of such signs. letters. numerals. 15 . • Such signs. shall be capable of constituting a trademark.TRADEMARKS • Any sign. in particular wiords including personal names.1).

at least in connection with goods for which the trademark was registered or with goods similar to such goods without the authorization of the owner. 16 . • The protection that laws give to a trademark consists essentially of making it illegal for any entity other than the owner of the trademark to use the trademark or a sign similar to it.• Most countries require that trademarks for which protection is desired be registered with government authority.

• The TRIPS agreement sets out. 17 . the rights conferred on the owner of a trademark and the protection to be given in respect of well-known marks. in its article 16.

• Protection generally means that the trade name of one enterprise may not be used by another enterprise either as at trade name or as a trademark or service mark and that a name or designation similar to the trade name.” • A commercial name or trade name. 18 .is the name or designation which identifies the enterprise. In most countries.the two expressions mean the same thing. if likely to mislead the public. may not be used by another enterprise. trade names may be registered with a government authority.TRADE NAMES • Another category of objects of industrial property is “commercial names and designations.

• As a general rile. a region or a specific place( for instance. 19 . the use of false or deceptive indications of source is unlawful. expression or sign indicating that a product or service originates in a country.”).GEOGRAPHICAL INDICATIONS • An indication of source is constituted by any denomination.” made in …….

PROTECTION AGAINST UNFAIR COMPETITION • The last object of the protection of industrial property is the protection against unfair competition. the good s or the industrial or commercial activities of a competitor. 20 . false allegations in the course of trade of such a nature as to discredit the establishment. and indications or allegations the use of which in the course of trade is liable to mislead the public as to the characteristics of goods. • The following in particular constitute acts of unfair competition in relation to industrial property: all acts of such a nature as to create confusion with the establishment. the goods or the industrial or commercial activities of a competitor.

industrial designs. • It is particularly important for the protection of know how. trade marks and geographical indications.• The protection against unfair competition supplements the protection of inventions. acquired by. or used by others without their consent in manner contrary to honest commercial practices so long as such information: 21 . that is : technology or information which is not protected by patent but which may be required in order to make the best use of a patented invention. • Members of the TRIPS agreement are required to provide natural and legal persons the possibility of preventing information lawfully within their control from being disclosed to.

and b) c) Has been subject to reasonable steps under the circumstances.a) Is secret in the sense that it is not. by the person lawfully in control of the in formation. Has commercial. value because it is secret. as a body or in the precise configuration and assembly of its components. generally known among all readily accessible to persons within the circles that normally deal with the kind of information in the question. to keep it secret 22 .

” which protects the interests of creators by giving them property rights over their creations. 3) inventions of all fields of human endeavor. phonograms. scientific. and broadcasts.” .BASIC NOTIONS OF COPYRIGHT (INTRODUCTION) • Copyright legislation is part of body of law known as “intellectual property. 6) trademarks. service marks. literary or artistic fields. • Subject matter protected by intellectual property rights: 1) literary. 7) protection against unfair competition. 5) industrial designs. artistic and scientific works. 2) performances of performing artists. and commercial names and designations. and 8) “all other rights resulting from intellectual activity in the 23 industrial. 4) scientific discoveries.

• Roughly speaking. or furniture in a home. such as a wristwatch. this is known as “movable property. a car. • One is property consisting of movable things. • In some legal systems. such as a corporation. thjere are three types of property. • The property owner may be a human being or a legal entity .PROPERTY • The most important feature of property is that the owner of the property may use it as he wishes.” 24 . no body else can lawfully use his property without his authorization.

or as it is sometimes known. 25 .” because the owner has the “exclusive” right to use his property. use by others illegal.• No one except the owner of the wristwatch. • The second type of property. • This legal right is referred to as “exclusive. but without such authorization. the proprietor may authorize others to use the property. real property. • Naturally. the car or the furniture can use these items of property .

• Land and things permanently fixed on it. the human intellect. are immovable property. because they cannot be lifted or moved. such as houses. which protects the creations of the human mind. • The third type of property is intellectual property. • This is why this kind of property is called “intellectual” property: 26 .

namely “industrial” property. which protects inventions.INTELLECTUAL PROPERTY • Intellectual property has been divided into two branches. and “copyright.” • while other types of intellectual property also exist. • Inventions may be defined(in a non-legal sense)as new solutions to technical problems. for present purpose it is helpful to explore the distinction between industrial property and copyright in terms of the basic difference between inventions and literary and artistic works. 27 .”which protects literary and artistic works as well as creations in the field of so-called “related rights.

without copying or even being aware of the first inventor‟s work. therefore. protections of inventions under patent law does not require that the invention be represented in a physical embodiment. and are protected as such. and technology-based works such as computer programs and electronic data bases. 28 . works of the fine arts such as paintings and sculptures. protection against any use of the invention without the use of authorization of the owner. • Even a person who later makes the same invention independently. music.• These new solutions are ideas. • Protection accorded to inventors is. must obtain authorization before he can exploit it. • Literary and artistic works include books.

colors and shapes. • The creativity protected by copyright law is creativity in the choice and arrangement of words.• Unlike protection of inventions. copyright law protects only the form of expression of ideas. musical notes. not the ideas themselves. • Copyright law protects the owner of property rights in literary and artistic works against those who “copy” or otherwise take and use the form in which the original work was expressed by the author. 29 .

3) limitations on such rights: 4) duration of copyright. 6) enforcement of copyright.COPYRIGHT Structure of copyright law will be divided into the following sections: 1) the works protected by copyright. 30 . 2) the rights granted to the owner of copyright. 5) ownership and transfer of copyright.

31 . whatever may be the mode or form of its expression. • Choreographic works and entertainments in dumb show. • Dramatic or dramatico-musical works. sermons and other works of the same nature. pamphlets and other writings.PROTECTED WORKS • „literary and artistic works‟ shall include every production in the literary. • Lectures. such as books. addresses. scientific and artistic domain. • Musical compositions with or without words.

maps. engraving and lithography. architecture or science. • Works of applied art. • Works of drawing. topography. sculpture. plans. • Illustrations. • Photographic works. painting.• Cinematographic works to which are assimilated works expressed by a process analogous to cinematography. 32 . architecture. sketches and three-dimensional works relative to geography. to which are assimilated works expressed by a process analogous to photography.

” it can be 33 understood directly only by a machine. . in its final “mode or form of expression. whatever may be the mode or form of its expression. for the purposes of copyright protection. as including every original work of authorship. • A computer program is a set of instructions which controls the operations of computerin order to enable it to perform a specific task. irrespective of its literary or artistic merit. scientific and artistic domain. such as the storage and retrieval of information.• Copyright applies to “every production in the literary. not by human.” • The expression “literary and artistic works” is a general concept to be understood. • A computer program is produced by one or more human authors but.

subject to the legally recognized rights and interests of others. economic rights. • There are two types of rights under copyright. which allow the owner of rights to derive financial reward from the use of his works by others. 34 . The owner of copyright in a protected work may use the work as he wishes." which allow the author to take certain actions to preserve the personal link between himself and the work.RIGHTS PROTECTED • Copyright is a branch of intellectual property. and “moral rights. and may prevent others from using it without his authorization. • Thus. the rights granted under national laws to the owner of copyright in a protected work are normally “exclusive rights” to authorize other to use the work.

such as musical works included in phonograms.that the right to control rental practices was necessary in order to prevent abuse of the copyright owner‟s right of reproduction. • The right of rental is justified because of technological advances have made it very easy to copy these type of works. 35 .RIGHT OF REPRODUCTION AND RELATED RIGHTS • The rights of the owner of copyright to prevent others from making copies of his works is the most basic right under copyright. some copyright laws include a right to control importation of copies as a means of preventing erosion of the principle of territoriality of copyright. that is. and computer program. • The right to authorize rental of copies of certain categories of works. audiovisual works. • Finally. and therefore. • Experiences in some countries has showed that copies were made by customers of rental shops. the legitimate economic interests of the copyright owner would be endangered if he could not exercise the rights of reproduction and distribution on a territorial basis.

BROADCASTING AND COMMUNICATION TO THE PUBLIC • On the basis of the right of public performance the author or the other owner of copyright may authorize live performances of a work. • Public performance also includes performance by means of recordings. airplanes. such as the presentation of a play in a theatre or an orchestra performance of a symphony in concert hall. musical works embodied in phonograms are considered “publicly performed” when the phonograms are played over amplification equipments in such places as discotheques. 36 .RIGHTS OF PUBLIC PERFORMANCE. and shopping malls. thus.

television.• The right of “broadcasting” covers the transmission by wireless means for public reception of sounds or of images and sounds. • The rights of broadcasting. or satellite. communication to the public and public performance have been the subject of much discussion. whether by radio. 37 .

TRANSLATION AND ADAPTATION RIGHTS • “Translation” means the expression of a work in a language other than that of the original version. • Translation and adaptations are works protected by copyright. • Therefore in order to reproduce and publish a translation or adaptation. • “adaptation” is generally understood as the modification of a work to create another work. authorization must be obtained from both the owner of the copyright in the original work and of the owner of copyright in the translation and adaptation. 38 .

mutilation or other modification of . these rights.MORAL RIGHTS 1) The right to claim authorship of the work ( sometimes called the right of “ paternity”). which are generally known as the economic rights and to remain with the author even after he has transferred his economic rights. 39 . 2) the right to object to any distortion. or other derogatory action in relation to. the work which would be prejudicial to the authors honour ( sometimes called the right of “ integrity” ).

provide that the source of the quotation. a work of choreography would only be protected once the movements were written down in dance notation or recorded on videotape. and use of the works for the purpose of news reporting. but with the obligation to compensate the owner of rights. use of works by way of illustration for teaching purposes. including the name of the author is mentioned and that the extent of the quotation is compatible with fair practice. and “ non voluntary licenses” under which the acts of exploitation may be carried out without authorization.LIMITATIONS ON RIGHTS • Exclusion from copyright protection of certain categories of works. For example. The making of quotations from a protected work. 40 • • 1) 2) • . Rights of authors and other owners of copyright concern particular acts of exploitation. There are two basic types of limitations in this category: “Free uses” which are acts of exploitation of works which may be carried out without authorization and without an obligation to compensate the owner of right for the use.

• The law provides for a period of time. under some national laws. the life of the author and not less than 50 yrs after his death. • The period or duration of copyright begins from the movement when the work has been created. a duration. when it has been expressed in tangible form. during which the rights of the copyright owner exists. • As a general rule. authors and other owners of rights grants exclusive licenses to a single entity. 41 . • Under collective administration.Duration of copyright • Copyright does not continue indefinitely. or.

including entry of imported goods after clearance by customs. and To preserve relevant evidence in regard to an alleged infringement. particularly to prevent the netry of infringing goods into the channels of commerce. 42 • 1) 2) . but the evolution of new national and international enforcements standards. Conservatory or provisional measures have two purposes: To prevent infringements from occuring.Enforcements of rights • The conventions contain very few provisions concerning enforcements of rights.

• Measures to be taken at the border are different from the enforcement measures describe so far. in that they involve action bye the customs authority rather than by the judicial authority. 43 . as in the case of civil remedies. and creative an effective deterrent to further infringement. and. often in the form of a judicial order to destroy the infringing goods. usually in the form of monetary damages .• Civil remedies compensate the owner of rights for economic injury suffered because of the infringement. • Criminal sanctions are intended to punish those who willfully commits acts of piracy of copyright and related rights on a commercial scale. • Border measures allow the owner of rights to apply to customs authorities to suspend the release into circulation of goods which are suspected of infringing copyrights.

increased knowledge about useful goods and how to make them. i. particularly in developing countries. the critical role of technology as the driver of economic progress has been widely acknowledged. 44 .e. • The value added to most new products comes basically through intangible components. • The last decade has witnessed sweeping economic changes all over the world.. including technology. • With new opportunities present.TECHNOLOGICAL AND ECONOMIC GROWTH • Long term economic growth is the result of an increase and accumulation of scientific and technological knowledge.

• Today. • As country after country has liberlised its economic regime. regardless of whether the innovation is a simple gadget or a sophisticated invention. 45 . • Economic progress requires a constant stream of new ideas and products to improve the quality of life. • Restrictive policies with respect to controles on terade on industry. foreign investment and technological collaboration habve been discarded. nobody challenges the importance of creativity. new competitive pressures have come into play. inventions and innovation to economic and technological development.

GROWING ROLE OF INTELLECTUAL PROPERTY RIGHTS(IPRs) • Intellectual capital is often of considerable vaklue because it is unique. proprietary technology. distribution network. but also knowhow. integrated circuit topographies. training systems and methods. appellations of origin. copyrights. trade secrets. • It comprises. licencensing agreements and joint ventures are based on IPR assests. customer lists. • The transfers of technology. skill and knowledge of workforce. trademarks. inter alia. patents for inventions. 46 . utility models. quality management system. industrial designs. etc. talents.

• Novel-financing techniques and mergers have emphasized of the role of intellectual property portfolios in companies. 47 . • IPRs are now pledged as security for loans and the assessment the real worth of companies more pften requires the valuation of their intellectual property portfolio.

and less incentive to invest in the development and strengthening of their technological capacities.The role of IPR in promoting socio-economic development • The patent industry must be understood as a policy instrument that encourages developing indigenous technological capabilities by providing an incentive to local inventors. it represent s strong shield for the development of innovative domestic industry. 48 . entrepreneurs and companies would have no effective protection against the imitations of their inventions. inventors. In fact. but rather along-term infrastructure investment in the development of a national matket. Without a patent system. • The patent system does not constitute an instant remedy. research and development organizations and industry. however small it may be at that moment.

• To encourage the development of new technology. • To facilitate access to the latest technological information.Functions of the industrial property system The main functions of the industrial property system may be summarized as follows: • To stimulate inventive and innovative activity. • To encourage the commercialization of inventions and innovations. 49 .

by their very nature. • Patents give evidence of the technological strength of the respective partners because they are easy to investigate and. represent R&D efforts resulting in an advance in the art.IPR in transfer of technology Contrary to secret technological know-how. patents perform several simultaneous functions. 50 . namely: • Patents provide information on who possesses which technology. which are critical for the efficiency of the network transferring and disseminating technology.

and is by no means limited to the grant of licenses as an additional source of income or as an instrument to serve markets into which an enterprise is not able to 51 enter itself. from any other technical knowledge of which a partner may lean during the transfer contacts. and where the jointly developed technology must be duly attributed for exploitation to each partner. This is particularly important in contract research and in cooperative research projects where the background knowledge of each partner must be distinguished from the jointly developed new technology. makes it possible that inventions can actually be transferred from one owner to another for monetary consideration in respect of the contract performance.• Patent claims allow one to define precisely the technical and territorial scope of any technology transfer transaction. • Therefore. . as well as the technology to be transferred and clearly distinguished. the cooperative efforts or the commercial value attributed to a particular technology. which transforms ubiquitous technical information into an appropriate assets. • The exclusive nature of patents. the transfer of the IPRs is as important as is their information and incentive function.

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